Charlene R. v. Solomon Charter School

For CHARLENE R., INDIVIDUALLY AND ON BEHALF OF M.R., LAW OFFICES OF DAVID J. BERNEY, P.C., Plaintiffs: DAVID J. BERNEY, LEAD ATTORNEY, KEVIN GOLEMBIEWSKI, LAW OFFICES OF DAVID J BERNEY, PHILADELPHIA, PA.

For COMMONWEALTH OF PENNSYLVANIA, COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF EDUCATION, CAROLYN DUMARESQ, IN HER OFFICIAL CAPACITY AS SECRETARY OF EDUCATION, COMMONWEALTH OF PENNSYLVANIA, Defendants: BARRY N. KRAMER, PA OFFICE OF ATTY GENERAL, PHILADELPHIA, PA.

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MEMORANDUM

Gerald Austin McHugh, United States District Judge.

The case before this Court raises important questions regarding whether a resolution agreement between a child and a charter school reached pursuant to the Individuals with Disabilities Education Act (IDEA) should be enforceable against the Commonwealth of Pennsylvania's Department of Education, as the State Education Agency, where the charter school has become insolvent and has ceased to exist, leaving the child with nowhere else to turn to vindicate his right to a free appropriate public education. I conclude that such an

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agreement can be enforced against the Commonwealth in this limited scenario.

I. Factual Background

M.R., a sixteen-year-old in the tenth grade, attended Solomon Charter School in Philadelphia during the 2012-2013 school year. M.R. has a disability that makes him eligible for special education services. The Plaintiffs allege that Solomon did not perform an adequate comprehensive multi-disciplinary evaluation of his special educational needs, failed to provide an adequate individualized education plan, failed to provide an education that allowed him to make meaningful progress, and retaliated against his parent, Charlene R., when she pursued an IDEA claim. Charlene R. retained the Law Offices of David J. Berney, and the representation agreement contains an assignment of rights provision in which Charlene R. assigned to the firm any right that she may independently have to attorneys' fees owed to her.

Charlene R. then filed a due process complaint, and the Plaintiffs settled the case with Solomon pursuant to 20 U.S.C. § 1415(f)(1)(B). The resolution agreement called for: (1) Solomon to establish an educational trust fund for the sole benefit of M.R. in the amount of $18,502; (2) Solomon to provide 190 hours of compensatory education valued at $30 an hour; (3) $9,250 from the trust to be payable to the Law Offices of David J. Berney for attorneys' fees and costs related to the matter; (4) in the event Solomon voluntarily ceases operations, it shall inform the Law Offices of David J. Berney in writing no more than 7 days after and shall accelerate payment of the remainder of funds into the educational trust fund within the same period; (5) Solomon to be responsible for any additional attorneys' fees incurred by Charlene R. in enforcing the agreement.

The resolution agreement was signed by Solomon on September 26, 2013. Solomon then ceased operations on October 11, 2013--just over two weeks later. Solomon had not made any payments into the trust fund or toward attorneys' fees, and did not send written notice as required by the agreement. The Plaintiffs initially filed suit against Solomon, but have now amended their complaint to include the Commonwealth Defendants as well. At argument, counsel for Plaintiffs represented that multiple attempts to collect from Solomon have been fruitless, and that for all practical purposes it is defunct. The Plaintiffs have structured Count I as an IDEA claim and Counts II and III as breach of contract claims. The Commonwealth Defendants have moved to dismiss all counts against them.

II. IDEA Framework

The Individuals with Disabilities Education Act (IDEA) as it exists today is the former Education for All Handicapped Children Act (EHA), which was renamed in 1990. The Act seeks to ensure that every child with a disability has access to a " free appropriate public education" (FAPE) that is tailored to meet his or her unique educational needs. See 20 U.S.C. § 1400. In fact, the Third Circuit has stated that " [t]he IDEA requires that states to receive federal education funding make available a free and appropriate public education to all children with disabilities residing within their borders." D.S. v. Bayonne Bd. of Educ.,602 F.3d 553, 556 (3d Cir. 2010). A " free appropriate public education" is defined within the act as special education and related services that: (A) have been provided at public expense, under public supervision and direction, and without charge; (B) meet the standards of the State Educational Agency; (C) include an appropriate preschool, elementary school, or secondary school education in

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the State involved; and (D) are provided in conformity with the individualized education program required under section 1414(d). 20 U.S.C. § 1401(9).

In order to receive federal money under the IDEA, a state must submit a plan of compliance to the Secretary of Education, who then distributes funding. 20 U.S.C. § § 1412-1414. The Act then gives the State Education Agency (SEA) the responsibility of apportioning the funds to Local Education Agencies (LEAs), whereby the LEAs apply to the SEA in order to receive that funding. 20 U.S.C. § 1413(a). The SEA is responsible for ensuring that LEAs comply with the mandates of the IDEA in providing educational services to those eligible students. 20 U.S.C. § 1412(a)(11)(A).

The LEA, as the entity that is actually providing services to children with disabilities, must develop an Individualized Education Program (IEP) for each eligible child that should include (1) present levels of achievement and performance, (2) measurable annual goals, and (3) special education and supplementary aids and services to be provided to the child, as well as other details regarding the child's educational program. 20 U.S.C. § 1414(d)(1)(A)(i). The IEP should evolve with the child's development, and should be continually revised as appropriate. 20 U.S.C. § 1414(d)(4).

Thus, IDEA delegates supervisory authority to the SEA, which is responsible for administering funds, setting up policies and procedures to ensure local compliance with IDEA, and filling in for the LEA by providing services directly to students in need where the LEA is either unable or unwilling to establish and maintain programs in compliance with IDEA. The LEA, on the other hand, is responsible for the direct provision of services under IDEA, including the development of an individualized education program (IEP) for each disabled student, the expenditure of IDEA funds to establish programs in compliance with IDEA, and the maintenance of records and the supply of information to the SEA as needed to enable the SEA to function effectively in its supervisory role under IDEA.

The IDEA also provides a set of procedural safeguards to ensure that parents may contest decisions regarding their children. Most importantly, parents have the right to an impartial due process hearing conducted by either the SEA or the LEA. 20 U.S.C. § 1415(f). Aggrieved parents may then bring a civil action in a state court of competent jurisdiction or in a United States District Court. 20 U.S.C. § 1415(i)(2).

Sovereign immunity does not bar suits against the states under the IDEA. The Act itself contains a provision abrogating state sovereign immunity. See 20 U.S.C. § 1403. The Third Circuit has further upheld that the acceptance of funds under the IDEA results in a waiver of sovereign immunity pertaining to IDEA claims. A.W. v. Jersey City Public Schools,341 F.3d 234, 254 (3d Cir. 2003).

III. The IDEA Claim

A. SEA Liability for Provision of FAPE under the IDEA

This Court's analysis of the IDEA claim must be guided primarily by the Act itself and the intent of Congress as discerned by the Third Circuit Court of Appeals. I begin with the language of 20 U.S.C. § 1412(a)(11)(A), which provides:

The State educational agency is responsible for ensuring that--

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(i) the requirements of this subchapter are met;

(ii) all educational programs for children with disabilities in the State, including all such programs administered by any ...

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